Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown

from the not-going-to-happen dept

Yesterday, we wrote about the latest in the long running saga that is Stephanie Lenz's battle (with the help of the EFF) over whether or not Universal Music was right to issue a DMCA takedown for her 29 second video of her toddler son dancing to a (barely audible) Prince song. Once again, here's the video.

As we noted in the story, it seemed unlikely that Lenz and the EFF would prevail in getting Universal Music to pay up for the bogus takedown. Joe Mullin, who was in the courtroom during the latest hearing provides some additional details that highlight just why this is going to be difficult for them. The problem isn't necessarily the case or the situation, but the fact that the parts of the DMCA used to push back against bogus takedowns are ridiculously weak. It has been determined that only in cases of "subjective bad faith" would there be fees awarded. That means EFF has to show that Universal knew that this was fair use, and then decided to issue the takedown anyway.

[District Court Judge Jeremy] Fogel said that it isn't clear that EFF has met the high burden of showing that Universal exhibited "subjective bad faith."

EFF would have to show that there's no way the video was not fair use, first of all. In addition, EFF lawyers would have to show "there was some concerted activity on Universal's part to blind itself to that fact—that even knowing they had nothing to stand on with regards to fair use, they put out a takedown." Even if EFF could show that Universal Music acted recklessly or with negligence—that wouldn't be enough.

That's a pretty tall order, and a clear weakness in the DMCA in preventing bogus takedowns (an all too common phenomenon). While the EFF properly points out that Universal's employee who sent the DMCA "had no idea what to look for," that still might not be enough to show subjective bad faith -- just laziness.

Additionally, there is some skepticism about if it's worth fighting this through, since the amount of money at stake is minimal:

The amount of damages EFF is fighting for is tiny, in the grand scheme of things. And Fogel also expressed skepticism that EFF could ask for much in damages. He has already limited the amount they can ask for. EFF is asking for compensation for 10 hours of Lenz's time, spent dealing with the takedown notice before she contacted EFF, based on the Pennsylvania minimum wage at the time of $6.25 per hour. They're also asking for compensation $1,275 for the time that EFF attorneys spent advising her pre-suit.

Despite the fact that not much money can be won, in an interview with Ars, [EFF's Corynne] McSherry said that the principle is still important, so that content owners will pause before they shoot out takedown requests.

I understand the principle argument -- but courts often aren't that interested in spending time on such cases, which they believe are wasting time from cases that are more important. At the very least, Judge Fogel appears willing to let a jury weigh in on this one, and has noted that despite all of the hurdles EFF and Lenz face, it's not a complete slam dunk for Universal: "A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith."

And so the case moves on. I'm still betting that Universal Music will be happy with the end result, and I worry that the resulting precedent will be used to justify more broad and bogus takedowns. Hopefully, I'm proven wrong.

note to self

When writing laws which will benefit my friends at great expense to the general public, make sure that the law includes a lot of ways for my friends to do whatever they want, and gives the public a great big finger in the air.

Even if Universal get away with this, this is just going to be further fuel for the fire when we call them out. It's obvious and clear as paper. Let's make sure they'll remember their idiocy like how a traumatized high-schooler remembers being bullied.

I hope EFF (together with ACLU) can take this case (and many others) and appeal the constitutionality of whole DMCA on the First Amendment basis... How does it go? "The Congress should make no law ..." And yet - here is exactly that law!

Well, in this case, the reason is NO ACTUAL HARM.

Your legalisms seem to only cut one way: Lenz still has her video to play all she wants, so no harm there, right? And if removed the music can put it out. Total time outside of going to court would have been (for me) to remove audio from a video, about a minute of fiddling at the command line, another to upload. Give her a quarter and bid her go to hell.

This is SUCH a silly case to work with. Remember, EFF, you just might run into geezers like me who see the facts as above and turn your damned snarky imposition on their time to sit in judgment on this SILLY case against you.

Re: Well, in this case, the reason is NO ACTUAL HARM.

How does one define harm then? Many times the RIAA / MPAA scream "harm" when many don't see it that way. You cannot accept one side's definition of "harm" blindly then turn around and decry the other side's definition of "harm".

You favor the subjective approach far too strongly. If anything making "harm" objective would be a good start.

Bad faith

Universal's employee who sent the DMCA "had no idea what to look for," that still might not be enough to show subjective bad faith

How is having someone look for something, when they don't know what to look for, not bad faith? The only way it could be worse I'd think is if they didn't have anyone look at it (which they automated takedowns do).

Sorry I sold you this fake painting, but I asked someone on the street if it was legit and they said they thought so...

'they (courts) believe are wasting time from cases that are more important.'

what the court should take into consideration is that the case may not be important to it but is important to the person/people involved. the longer the entertainment industries can get away with this sort of thing, the longer they will and the more false take downs they will issue. the court also stated that it had limited the amount that could be claimed from UMG. why was that done? UMG, like the other members of this industry always want to claim the maximum damages possible, regardless of whether they are justified or the harm that will be done to the often innocent accused

I think this case will set precedent, but I don't think many here will like the precedent's that set. That's one of the risks of being at the forefront of issues like the EFF. Their cases can backfire and create the opposite precedent that they want.

The test that the district court adopted here is that a factfinder might infer subjective bad faith given the fact that a right holder did not consider fair use before issuing a takedown notice. I know that bit has been championed by the anti-copyright crusaders, and rightfully so, but I think as the arstechnica piece pointed out--and as Mike is now apparently understanding as well--it's not much of a victory.

First of all, this is only the "law of the case." This case can be cited by other courts as being persuasive, and they can choose to follow it if they like, but no other court has to follow it. In fact, this very judge in the very next case can use a contrary test. It's precedent, and other courts might find it compelling and adopt its reasoning, but no other court has to do so.

Secondly, and more importantly, the test is subjective bad faith. This means basically that they have to issue the takedown notice knowing that it's completely bogus. Given the elusive nature of fair use, that's an incredibly high burden. So high in fact, that I cannot imagine a scenario where it would that way in practice.

And the discovery that commenced in the Lenz case demonstrates the point. UMG had a lawyer who set criteria for and supervised the employee who considered whether the use was authorized. Part of Lenz's argument is that considering whether it's authorized is incomplete unless fair use is also considered. But how could have UMG's counsel have known that there's a duty to consider fair use? No court before (or after, that I know of) has ever said that fair use must be considered before issuing a takedown notice.

It cannot be subjective bad faith to fail to discharge an unknown--and unknowable--duty. For Lenz to win, the factfinder would have to find as a fact that UMG knew it had to consider fair use, considered it, found it to be fair use, and then issued the notice anyway. Not gonna happen.

Ultimately, I don't think the court's test is going to be adopted anyway. I don't think fair use is a use authorized by law. It's a use permitted by law as an equitable defense to a prima facie case of infringement. I think it makes a lick of sense to say that a plaintiff like UMG can in good faith file a federal lawsuit for infringement based on a use like Lenz's, but then to say that filing a takedown notice upon the same information is a bad faith misrepresentation.

If the same facts support a lawsuit, then surely they support a takedown notice (which is intended to avoid the lawsuit, and is very beneficial to infringers everywhere who get away with infringement).

Re:

Re: Well, in this case, the reason is NO ACTUAL HARM.

"Lenz still has her video to play all she wants, so no harm there, right?"
Just like UMG still has all their music to play (and sell) as much as they want, despite it also being made available for illegal downloading ? So no harm there, right ? And yet they still go to court asking for $250,000 per song...

And why should she remove the audio from the video, when using that audio was found to be fair use ?

She has a constitutional right to freedom of speech, and UMG prevented her from exercising it. No harm, really ?

Re: Well, in this case, the reason is NO ACTUAL HARM.

Since this isn't the first time the question of stripping the audio had come up I'll address it.
This isn't like a video of some kids playing soccer and someone lays a sound track on it to make it funny.

This is people in their home enjoying life when everything aligns properly and you get what once was called a Kodak Moment™. Taking the the audio off, or as you suggest, just taking the music off(something well beyond the abilities of the average person filming something with their phone) pretty much destroys the entire experience. This is why a few years ago your handlers quit making movies without sound.

the obvious answer to me seems like a ddos style campaign to clog their system with so many false positives that it's revealed for the absurdity that it is. i have a feeling that's a felony if someone without a stable of lawyers trys to do it though.

Re: Well, in this case, the reason is NO ACTUAL HARM.

This is why YouTube sucks. My friend had a similar baby video taken down a while back. I had a video that was taken down a couple years ago due to a claim made by Viacom, even though I owned all the content in the video. I could never get a response out of YouTube.

Re:

Correct me if I'm wrong, but isn't the whole point of fair use to avoid dragging into court every single case where a reasonably small portion of a licensed work is used? I mean, you don't see fox news issuing takedowns to thedailyshow.com for this very reason. It seems that, though not required by law as you said, common sense and good faith would lead one to weigh fair use on one hand vs. infringement on the other.

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You can't reliably email large attachments, like videos. So, if not YouTube (or equivalent), and if you don't run your own fileserver, then you're stuck with using those horrible, evil file locker services.

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Correct me if I'm wrong, but isn't the whole point of fair use to avoid dragging into court every single case where a reasonably small portion of a licensed work is used? I mean, you don't see fox news issuing takedowns to thedailyshow.com for this very reason. It seems that, though not required by law as you said, common sense and good faith would lead one to weigh fair use on one hand vs. infringement on the other.

Not that common sense ever has anything to do with these matters.

I agree that the use here is probably fair and the better course would have been not to issue the takedown notice. But that's not the issue. The issue is whether it was subjective bad faith to do so. Considering that fair use is a defense and that the would-be plaintiff has a legitimate, nonfrivolous claim of infringement, I don't see how any would-be plaintiff could ever be in subjective bad faith so long as there's copying.

Re: Re: Re: Re: Re:

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"The issue is whether it was subjective bad faith to do so. Considering that fair use is a defense and that the would-be plaintiff has a legitimate, nonfrivolous claim of infringement, I don't see how any would-be plaintiff could ever be in subjective bad faith so long as there's copying."

So you are basically admitting that there is no punishment for using the DMCA to censor people, so long as they use any scrap of material the would-be plaintiff could considering copying.

Re: Re:

Thanks for your perfect illustration on how copyright and DMCA are in the way of legit public sharing. No sir, copyright holders don't own the public space. And youtube is not made to be exclusivly a free of charge advertising means for copyright holders.

wait? what?

So big-corp doesn't have to prove willfull infringement or even actual infringement when sending one, but when challenging a bogus DMCA, the defendent has to prove the sender did it to harm them? Using automatic bot takedowns makes them immune to reprisal? *facepalm*

Just when I thought this DMCA shit had reached maximum olfactory potency, it gets worse ...

"And so the case moves on. I'm still betting that Universal Music will be happy with the end result, and I worry that the resulting precedent will be used to justify more broad and bogus takedowns. "

I think your problem here is that you are trying to lump everything together, rather than looking at the different types of takedowns.

A bogus takedown would be someone intentionally issuing a DMCA notice for material that they clearly know they don't own, such as a band or artist signed to another label, perhaps competitor. That is bogus, and should be dealt with to the maximum effects of the law.

Then you hit the middle ground, which includes fair use. Since fair use isn't black letter law, but rather a system of test factors and judicial latitude, it's hard for a rights holder to be certain here. Since they cannot be sure, it really is in their best interest to issue a DMCA and allow the site owner or hosting company to deal with the issue within the boundaries of the law. Remember, all the host seemed to need by the law is a reasonable claim of fair use to nullify their liability. These DMCA notices (not "takedowns", they are just notices) are perfectly legit and totally within the both the scope and the spirit of the law.

Where the real issue lies is with hosting companies / site owners who choose to "remove first, ask questions later" rather than deal with DMCA in the ways allowed under the law. That a hosting company chooses to shut down an entire blogging site over a single DMCA notice rather than deal with the site owner is their error, not the right holders error.

Remember too: Fair use is a "yes I am infringing but..." answer. The DMCA notice is only that the work is being used without permission. Fair use claims are the answer of "I didn't need permission because...".

That is how it's suppose to work. Perhaps you want to try stringing up the hosts and service providers for being dicks, rather than trying to blame the rights holders for following the law.

Re: Re: Re: Re: Re:

Okay then, but Fair Use should be the default position of courts. IF you make an assertion in court, you have to back it up with evidence. This doesn't happen with DMCA takedown notices, which have all the force of law behind them, and yet relatively few of the checks that laws have.

Funny how the copyright cartel argues in favor of being lazy when it benefits them, but when others show any bit of laziness it is an outrageous infringement upon their legal rights and must be squashed with abundant use of taxpayer dollars.

Looks like a one way street in the town of Laissez-faire.
This growing metropolis located next to the historical city of Hypocrisy and nestled in the country of IveGotMine is experiencing increased tourist activity due to its two tiered feudalism. You too can enjoy the many wonders found there if you don't mind the stench.

Re:

A DMCA notice isn't "just" a notice. The provider will lose safe harbor status if they don't take down the specified content. The provider cannot exercise editorial control, deciding that some situations are fair use and others aren't. If a DMCA notice is received, and is properly formatted and all that, then the provider has no choice but to take the content down, or they open themselves up to liability for everything they "publish".

And finally, content owners would love for the public to believe otherwise, but fair use is not "yes I am infringing but..." Rather, the word infringing does not apply when it's fair use. No rights are being infringed; the content owner's rights simply do not cover certain types of uses. One can claim fair use and still be accused of infringement, and then a court will test the use against the four prongs and make a determination one way or the other. Until then, it's not infringement.

Wasting the Jury's Time

Judge Jeremy Fogel, who is overseeing the case, said at the hearing that he isn't inclined to find for either side without a jury trial. . . . .

Fogel said that it isn't clear that EFF has met the high burden of showing that Universal exhibited "subjective bad faith." . . . .

He hardly seemed ready to rule in Universal's favor, either. "A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith," he said.

I can sympathize with Judge Fogel's desire to let this case go to a jury. Yet Judge Fogel certainly has some obligation to those potential jurors: He should not waste their time.

His court sits in a Ninth Circuit that is not known for it's fairness. If Judge Fogel lets this case go to a jury, only to have the Ninth Circuit disregard that jury's verdict, then Judge Fogel has compounded the public unfairness here—by wasting those jurors' time.

If there are no material facts in dispute, then a ruling on summary judgement is appropriate. Fair use is an equitable doctrine. If Judge Fogel can't bring himself to apply an unfair circuit precedent, then he should not try to dodge the issue by passing the buck to a jury—wasting their time—compounding the unfairness—only to have the Ninth Circuit do their worst.

If Judge Fogel can't bring himself to apply an unfair circuit precedent, then he should resign his job. He can get better pay in private practice, anyhow.

Re: Re: Re: Re: Re:

Fair use is not "yes I infringed but...". average_joe described it more accurately as prima facie infringement, i.e. "yes it looks like infringement, but your rights do not extend to this particular four-prong-satisfying use, and thus were not (and cannot be) infringed in this situation." But you're correct in that it's a defense, not a magic spell that wards off accusations of infringement.

Re: Re: Wasting the Jury's Time

If Judge Fogel can't bring himself to apply an unfair circuit precedent, then he should not try to dodge the issue by passing the buck to a jury

Why not? This is a perfectly good way to get some additional focus on an issue that needs attention. Good for Judge Fogel!

Judge Fogel should not be holding trials as publicity stunts.

The jurors are conscripts—drafted into service for the duration. They are expected to follow the law. But what kind of expectation is that?—when the judge himself refuses to do his duty. It may well be that the judge's conscience rebels at that duty. But he, at least, has the option of walking off the job in protest.

Suppose the most likely outcome of this trial: The jury finds for Lenz, awards damages against UMG. Then, upon appeal, the Ninth Circuit reverses the judge, sets aside the jury's verdict —ignores it— and rules according to their precedent. What would really have been accomplished by that?